Woolgar v O'Neill - [2001] FCA 1149

FEDERAL COURT OF AUSTRALIA
Woolgar v O’Neill [2001] FCA 1149
INDUSTRIAL LAW – rules of organisation require Branch to pay proportion of contributions already collected to National Council – whether rules impose conflicting duties on officers of the organisation – whether the rules impose conditions that are oppressive, unreasonable or unjust.
Workplace Relations Act 1996 (Cth), ss 3(g), 187A(c), 196(c), 209.
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129, cited.
Doyle v Australian Workers Union (1986) 12 FCR 197, cited.
Roughan v Day (1991) 32 FCR 581, cited.
TONY WOOLGAR v MICHELE O’NEILL & ORS
N 551 of 2001
SACKVILLE J
SYDNEY
23 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 551 OF 2001

BETWEEN:

TONY WOOLGAR
APPLICANT

AND:

MICHELLE O’NEILL
FIRST RESPONDENT

JARROD SMITH
SECOND RESPONDENT

TERESA WEISS
THIRD RESPONDENT

DOROTHY PETERSON
FOURTH RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

23 AUGUST 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The first respondent take all steps, within her power, necessary to cause to be paid out of the funds of the Victorian Branch of the Textile Clothing and Footwear Union of Australia (“the Union”) to the applicant, on behalf of the National Council of the Union, an amount equivalent to twenty per cent of all contributions, other than entrance fees and commissions, collected or received by the Victorian Branch of the Union between 1 April 2000 and 31 December 2000.
2.The third and fourth respondents sign all necessary cheques or instruments that may be necessary to facilitate the payment referred to in order 1.
3.The applicant have liberty to apply in relation to these orders on three days’ notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 551 OF 2001

BETWEEN:

TONY WOOLGAR
APPLICANT

AND:

MICHELE O’NEILL
FIRST RESPONDENT

JARROD SMITH
SECOND RESPONDENT

TERESA WEISS
THIRD RESPONDENT

DOROTHY PETERSON
FOURTH RESPONDENT

JUDGE:

SACKVILLE J

DATE:

23 AUGUST 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE PROCEEDINGS

The applicant is the National Secretary of the Textile Clothing and Footwear Union of Australia (the “Union”), elected to that position most recently in 2000. The first respondent is the Secretary of the Victorian Branch of the Union. The third respondent is one of two trustees of the Victorian Branch and has filed a submitting appearance. The fourth respondent, so I was informed, was to replace the second respondent as the other trustee of the Victorian Branch shortly after the hearing in this matter. The fourth respondent was, without objection, added as a party to the proceedings at the hearing, apparently in anticipation of her taking up office as a trustee.
The first, second and fourth respondents were represented at the hearing by Mr Borenstein. I refer to them collectively as “the respondents”. Mr Rothman SC and Mr Hatcher appeared for the applicant.
The applicant seeks an order pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolgar v O'Neill

Details

AGLC: Woolgar v O'Neill [2001] FCA 1149
Case: [2001] FCA 1149
Decision Date: 23 AUGUST 2001

CaseChat Overview and Summary

The case of Woolgar v O'Neill involved a dispute concerning Rule 53A of the Textile, Clothing and Footwear Union of Australia (the Union). The Union had been formed through the amalgamation of two unions in 1992, and had approximately 20,000 members across various branches in Australia. The central issue in the case was whether Rule 53A, which was introduced by the National Council of the Union in response to the refusal of the Victorian Branch to pay capitation fees, contravened section 196(c) of the Act. Section 196(c) provides that the rules of an organisation must not impose oppressive, unreasonable, or unjust conditions, obligations, or restrictions on applicants for membership or members. The applicants sought a declaration that Rule 53A was in breach of this provision.

The court was required to determine whether Rule 53A, which imposed a condition on the Victorian Branch to remit capitation fees to the National Council, was oppressive, unreasonable, or unjust under section 196(c) of the Act. The court had to consider the nature of the dispute between the National Council and the Victorian Branch, the historical context of the capitation fees, and whether the imposition of Rule 53A was a reasonable response to the refusal of the Victorian Branch to pay the fees.

The court found that the applicants had made out their case for relief under section 209(1) of the Act. It held that Rule 53A was not oppressive, unreasonable, or unjust, and therefore did not contravene section 196(c) of the Act. The court also made orders requiring the first respondent to take steps to ensure that the capitation fees were paid by the Victorian Branch to the National Council, and that the third and fourth respondents sign the necessary cheques or instruments to facilitate this payment. The court granted the applicant liberty to apply in relation to these orders on three days’ notice, and rejected the contention for a deferral of the orders for six months.

The final orders of the court were that the first respondent take all steps, within her power, necessary to cause to be paid out of the funds of the Victorian Branch of the Union to the applicant, on behalf of the National Council of the Union, an amount equivalent to twenty per cent of all contributions, other than entrance fees and commissions, collected or received by the Victorian Branch of the Union between 1 April 2000 and 31 December 2000. The third and fourth respondents were required to sign all necessary cheques or instruments that may be necessary to facilitate the payment. The applicant was granted liberty to apply in relation to these orders on three days’ notice.

Orders

Orders of the court

1. The first respondent take all steps, within her power, necessary to cause to be paid out of the funds of the Victorian Branch of the Textile Clothing and Footwear Union of Australia (“the Union”) to the applicant, on behalf of the National Council of the Union, an amount equivalent to twenty per cent of all contributions, other than entrance fees and commissions, collected or received by the Victorian Branch of the Union between 1 April 2000 and 31 December 2000.

2. The third and fourth respondents sign all necessary cheques or instruments that may be necessary to facilitate the payment referred to in order 1.

3. The applicant have liberty to apply in relation to these orders on three days’ notice.

Background

Background to the litigation

The respondents contended, inter alia, that r 53A contravenes s 196(c) of the Act and that, accordingly, a declaration to that effect should be made pursuant to s 209(7) of the Act. Section 196(c) is in the following terms:“The rules of an organisation:…(c) shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust.”BACKGROUND The Union is a product of the amalgamation of two unions that took place in 1992. The Union has Branches in all Australian States. Its current membership, so I was told, is about 20,000. The Union’s registered office is in Sydney. Until about December 2000, the Union had a national office staff of five. According to the applicant’s uncontradicted evidence, the staff were all retrenched in December 2000 as a result of the Victorian Branch’s refusal to pay capitation fees to the National Council. Rule 53A was the response of the National Council to that refusal. The conflict between the National Council and the Victorian Branch apparently relates to a resolution passed by the National Council on 23 August 2000 authorising the applicant, as National Secretary, to take the necessary steps to create a federation with the Transport Workers’ Union of Australia. That resolution was rescinded on 4 April 2000 but the dispute concerning capitation fees in respect of the period 1 April to 31 December 2000 remains. The evidence suggests that the amount in dispute is between $270,000 and $300,000.CAPITATION FEES There was initially some confusion at the hearing concerning the form of the Rules governing capitation fees prior to the alteration of r 53 on 16 February 2001. The position became clearer as the result of the tender of r 53 in its old form (that is, the form it took from 1992 until its alteration on 16 February 2001). The old r 53, so far as relevant, provided as follows:“(a)In each financial year, each Branch shall remit to the National Council by way of capitation fees such percentage, not exceeding thirty per cent (30%) as is determined by the National Council at its annual meeting in the immediately preceding financial year of the contributions (other than entrance fees and commissions) collected or received by the Branch from members of each Branch.” It is common ground that capitation fees were initially set in 1992 but that, for some unexplained reason, the National Council did not thereafter determine the capitation fees at its annual meeting each year. Rather, each Branch paid its capitation fees apparently (although this is not entirely clear) by reference to the percentages determined in 1992. I infer from the evidence that the Victorian Branch regularly paid to the National Council capitation fees at the rate of twenty per cent of the contributions collected or received by it (other than entrance fees and commissions), until it ceased to do so in respect of contributions collected or received during the period from 1 April 2000 to 31 December 2000.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J

Finally, Mr Borenstein submitted that, in exercise of my discretion, I should decline to grant relief to the applicant. In substance, however, the only matters relied upon to support this submission were those I have already rejected. In my opinion, no reason has been put forward for withholding relief to the applicant.CONCLUSION The applicant has made out his case for relief under s 209(1) of the Act. The following orders should be made:1. The first respondent take all steps, within her power, necessary to cause to be paid out of the funds of the Victorian Branch of the Union to the applicant, on behalf of the National Council of the Union, an amount equivalent to twenty per cent of all contributions, other than entrance fees and commissions, collected or received by the Victorian Branch of the Union between 1 April 2000 and 31 December 2000.2. The third and fourth respondents sign all necessary cheques or instruments that may be necessary to facilitate the payment referred to in order 1.3. The applicant have liberty to apply in relation to these orders on three days’ notice. I have limited order 2 to the third and fourth respondents since, as I understand the position explained at the hearing, the second respondent is no longer a trustee of the Victorian Branch. If there is any difficulty about the form of this order, the applicant may take advantage of the liberty to apply to the Court. Mr Borenstein sought deferral of the orders for six months. No evidence was put forward to support this contention and no substantial reason given for taking this course. I see no justification for deferring implementation of the orders.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 551 OF 2001

BETWEEN:	TONY WOOLGAR APPLICANT
AND:	MICHELLE O’NEILL FIRST RESPONDENT JARROD SMITH SECOND RESPONDENT TERESA WEISS THIRD RESPONDENT DOROTHY PETERSON FOURTH RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	23 AUGUST 2001
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE J
DATE:	23 AUGUST 2001
PLACE:	SYDNEY